Opinion
107762
02-15-2018
The PEOPLE of the State of New York, Respondent, v. Melissa M. DEPUGH, Appellant.
Edward W. Goehler, Cortland, for appellant. Stephen K. Cornwell Jr., District Attorney, Binghamton (Stephen D. Ferri of counsel), for respondent.
Edward W. Goehler, Cortland, for appellant.
Stephen K. Cornwell Jr., District Attorney, Binghamton (Stephen D. Ferri of counsel), for respondent.
Before: Garry, P.J., Egan Jr., Lynch, Devine and Clark, JJ.
MEMORANDUM AND ORDER
Egan Jr., J.Appeal from a judgment of the County Court of Broome County (Smith, J.), rendered July 1, 2015, convicting defendant upon her plea of guilty of the crime of attempted robbery in the second degree.
Defendant pleaded guilty to attempted robbery in the second degree and was sentenced to 2½ years in prison, to be followed by three years of postrelease supervision. Defendant now appeals.
We affirm. Defendant's challenge to the factual sufficiency of the plea allocution is unpreserved for our review in the absence of an appropriate postallocution motion (see People v. Lopez, 71 N.Y.2d 662, 665–666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ; People v. Neal, 133 A.D.3d 920, 921, 20 N.Y.S.3d 193 [2015], lvs denied 26 N.Y.3d 1107, 1110, 26 N.Y.S.3d 766, 47 N.E.3d 96 [2016] ). Contrary to defendant's contention, the narrow exception to the preservation rule is not applicable, inasmuch as she made no statements during the plea colloquy that negated an essential element of the crime so as to require further inquiry from County Court (see People v. Lopez, 71 N.Y.2d at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 ; People v. McElhiney, 237 A.D.2d 827, 827, 655 N.Y.S.2d 460 [1997], lv denied 90 N.Y.2d 861, 661 N.Y.S.2d 187, 683 N.E.2d 1061 [1997] ). Defendant admitted during the plea colloquy that she and an associate went to the victim's home in order to rob him and that the associate displayed what appeared to be a firearm during the commission of the crime (see Penal Law §§ 20.00, 160.10[2][b] ). The fact that defendant did not display a firearm and denied having knowledge that her associate was going to do so did not negate an element of the crime (see People v. Vicioso, 116 A.D.3d 1250, 1251, 983 N.Y.S.2d 691 [2014] ; People v. Gage, 259 A.D.2d 837, 838–839, 687 N.Y.S.2d 202 [1999], lvs denied 93 N.Y.2d 924, 970, 693 N.Y.S.2d 507, 715 N.E.2d 510 [1999] ).
ORDERED that the judgment is affirmed.
Garry, P.J., Lynch, Devine and Clark, JJ., concur.